State v. Walker , 251 N.C. 465 ( 1960 )

Bobbitt, J.,

dissenting as to defendant Payton. In my opinion, the evidence, when considered in the light most favorable to the State, is insufficient to show that defendant Payton wa.s a party to the conspiracies charged in the bills of indictment.

“The existence of a conspiracy may not be established by the ex parte declaration of an alleged conspirator made in the absence of bis .alleged coconspirator. Only evidence of the acts committed and declarations made by one of the coconspimtors after the conspiracy is formed is competent against all, and then only when the declarations are made or the acts are committed in furtherance of the conspiracy.” S. v. Benson, 234 N.C. 263, 66 S.E. 2d 893, and oases cited.

Upon this legal principle, Aaron's testimony as to what Gore and Auslander said (in Payton’s absence) Payton had said was not competent to establish that Payton was a party to the alleged conspiracies. Hence, I do not discuss the dubious probative significance of this portion of Aaron’s testimony.

The competent evidence is sufficient to establish these findings: (1) Aaron, endeavoring to contact Gore, had a telephone conversation with Payton, and Payton gave Gore Aaron’s message; (2) after his telephone conversation with Aaron, Payton telephoned Auslander, with whom Payton was in contact from time to time; and (3) Pay-ton knew Auslander had sent Aaron to the Henderson area for some purpose incident to the strike.

The crucial question is whether the circumstantial evidence is such that logical and legitimate inferences may be drawn therefrom to support the factual conclusion that Payton was a party to the alleged conspiracies. See S. v. Stephens, 244 N.O. 380, 93 S.E. 2d 431. In my ‘opinion, the correct answer is, “No.” However strong the suspicion, it seems to me that supposition and conjecture must be invoked to reach such factual conclusion.

Of course, if we could assume that Payton then knew the facts disclosed hy the evidence now before us, there would 'be no doubt as to the sufficiency of 'the evidence as to him. But there is no evidence that he had such knowledge at the time of his telephone conversations with Aaron and with Auslander.

Activities incident to the strike were many and varied. Conceding the sufficiency of the evidence to support a finding that Payton knew Aaron had been sent by Auslander 'to the Henderson area for some purpose incident to the strike, Payton’s guilt or innocence depends upon whether he had knowledge of and was a party to the (particular) conspiracies alleged in the bills of indictment.. In my view, the evidence, as to Payton, is insufficient to support the verdict.